Tuesday, July 08, 2014Last Update: 7:29 AM PT

No Fault in Vengeful Warrant on Grieving Mom

CHICAGO (CN) - "Distasteful" motivation that brought federal agents to the home of a police officer's estranged daughter-in-law, just four days after his granddaughter died of a brain tumor, does not invalidate the warrant, the 7th Circuit ruled. Chicago police officer Curtis Scherr had been angry with daughter-in-law Jennifer Scherr after the death of 7-year-old Liza in July 2012 from a rare brain tumor. Curtis allegedly objected to keeping Liza's body at home for a grieving period before the funeral home viewing. Jennifer meanwhile objected to the religious symbols that Curtis placed around Liza's casket because she does not practice his religion and her daughter did not practice it either. After Curtis unsuccessfully tried to take possession of Liza's ashes from the funeral director, he allegedly sought vengeance by filing for a warrant to search Jennifer's house for illegal drugs. He said that, on the day after the funeral, he had observed 50 marijuana plants in her basement. The accompanying affidavit does not mention that he is related to Jennifer. Also left out was his role as an accomplice. Jennifer had been treating Liza with medical cannabis oil as the girl's health deteriorated, and Curtis in fact had helped the daughter-in-law grow the plants and harvest the oil herself to minimize costs. A judge granted the warrant application, causing 12 to 15 agents with the Drug Enforcement Administration to descend on Jennifer's home four days after the funeral. Jennifer had gotten rid of the plants after Liza died, however, so the agents came up empty-handed. The 7th Circuit ruled last week that Jennifer cannot sue Curtis or Chicago for conducting an unlawful search, despite Curtis' biased motive for submitting the warrant application. "Curtis's behavior, which culminated in the DEA's search of his daughter-in-law's house, was, if it was as the complaint describes it, atrocious," Judge Richard Posner wrote for a three-judge panel. "And if he knew, when he submitted it in support of the application for a search warrant, that there was no longer any marijuana in his daughter-in-law's house, the issuance of the search warrant was based on a knowingly false assertion of probable cause for the search, and Jennifer's Fourth Amendment rights were violated. But there is no allegation that when the warrant was applied for he knew she'd discarded the marijuana plants." Illinois did not offer a medical exemption in 2012 to the law against marijuana possession, and there still is no federal exemption, according to the ruling. The judges acknowledged that Curtis' affidavit was "misleadingly incomplete." "But candor in the affidavit would not have undermined the existence of probable cause," Posner said. "What was wrong with the affidavit was the motivation - Curtis's spite, his desire to see his daughter-in-law arrested just four days after the death of her child (his grandchild) and maybe even prosecuted (though that would be an unlikely sequel to the search even if the plants had still been in her basement) - though if she were prosecuted he might be as well, as her accomplice in the growing of the marijuana." (Parentheses in original.) While Curtis' actions in this case are "distasteful," the court said "the law is settled that a police officer's motive in applying for a warrant does not invalidate the warrant."